The doctrine of precedent depends on the existence of a clear hierarchy of courts and an efficient retrieval system in which the previous decisions of the courts can be made known (Wacks & Allan, 1993). The superior courts in England and Wales are the Supreme Court (formerly the House of Lords), the Court of Appeal, and the High Court. The Court of Appeal and High Court are divided into criminal and civil divisions, and, within the latter, the High Court into further specialist divisions, e.g.
Family Division and Court of Protection. The Supreme Court (formerly the House of Lords) is not bound by its previous decisions, although it will rarely depart from them. With its judicial elite, the Supreme Court may review existing, and make new, law. The Court of Appeal and High Court are bound by decisions in a higher court and, as a basic rule, bound by their own decisions. Higher courts may nevertheless adopt a rule or principle articulated in the lower courts, thus entrenching its authority.
A classic example of such entrenchment can be found in the case of Bolam (1957) case which established the ‘prudential doctor’ standard of care in the law of negligence, has infiltrated a wide variety of areas of medical law at the very highest levels of the court hierarchy, e.g. the House of Lords in Re F (1990). The Bolam case is also notable for taking the form of a direction to the jury in the days when most civil trials were jury trials (Brazier and Miola, 2000). Another closely related premise of the common law is the greater prudential weight given to decisions of the higher courts, in part because there are more judges deciding a single case and more time for deliberation (Laster 2001).
In England and Wales, modern law reports are ‘official’ publications only in a qualified sense. The most authoritative reports are those independently produced, or approved, by the Incorporated Council of Law Reporting (ICLA), a charitable organisation founded in 1865 and dedicated to the expeditious professional production of cheap and accurate law reports (Slapper and Kelly 2006). Before 1865, law reports were produced privately (‘the nominate reports’) of which there were hundreds of different series, many short-lived and many of dubious accuracy and
authority. The electronic revolution, and the growing availability of computerised systems of data retrieval, has made legal resources speedily available and to an unprecedented degree. The growth of computerised systems of data retrieval has given unprecedented access to legal materials and means that virtually every case is reported in one form or another thus making the concept of an ‘unreported’ case problematic (Spencer et al., 2002).
This measure of accessibility has put the concept of an ‘unreported’ case into issue. Munday (2004) goes further stating that “the demarcation line between reported and unreported case law has always been porous” (2004: 229). Even though case reports can be accessed directly from the courts, or online databases, or through the Internet, an unreported case can be classified as one which has not been considered sufficiently important to merit publication in one of the citable series of law reports. In addition, the growth of primary online legal resources by government publishers has lent ‘official’ status to such material even though it has not been subject to the scrutiny procedures which have traditionally characterised the most authoritative reports. The Internet publication of court decisions precipitated the introduction in 2001 of a neutral citation system of identifying court decisions independently of traditional citation formats pertaining to printed law reports, and a system of paragraph, as opposed to page, numbering (Practice Direction (Judgments: Form and Citation), [2001] 1 WLR 194).
Not all modern law reports are of exactly equivalent authority. The hierarchy of citation for the various series of law reports is laid down in a special protocol
relating to procedure in the civil courts (Practice Direction (Court of Appeal: Citation of Authority), [1995] 1 WLR 1096).The protocol stipulates that:
When authority is cited, whether in written or oral submissions, the following practice should in general be followed. If a case is reported in the official Law Reports published by the Incorporated Council of Law Reporting for England & Wales, that report should be cited…If a case is not (or not yet) reported in the official Law Reports, but is reported in the Weekly Law Reports or the All England Law Reports, that report should be cited. If a case is not reported in any of these series of reports, a report in any of the authoritative specialist series of reports may be cited.
The trustworthiness ascribed to the official law reports, that is, the series called The Law Reports, derives from the judicial endorsement and authentication procedures to which the case reports contained within them are subject. The Law Reports, which appear in four parts as Appeal Cases (AC), Chancery Division (Ch), Family Division (Fam) and King’s/Queen’s Bench Division (KB/QB), are written by professional lawyers (barristers and solicitors) who remain in court for the arguments of counsel and the handing down of judgement. These reports contain ‘headnotes’ (which distil the facts of the case and the applicable rule or principle of law), a skeleton summary of the arguments of counsel, as well as the judgement itself (see above). These are all subject to pre-publication judicial revision. Because, in England and Wales, headnotes, and arguments of counsel, are edited by lawyers and legal publishers, they do not constitute part of the judgment proper (i.e. the judicial stare) and therefore part of the case’s ‘authority’, unlike in other jurisdictions where the court itself supplies these and therefore form part of the judicial opinion and precedent.
Cases reported in The Weekly Law Reports, also a publication of the ICLA, do not contain précis of the arguments of counsel or benefit from pre-publication judicial revision. However, many of the cases reported there appear, after judicial revision, in
The Law Reports. Cases in the All England Reports, a series published by noted legal publishers Butterworths/Lexis – do not (like the Weekly Law Reports) contain the arguments of counsel, but do (unlike the Weekly Law Reports) benefit from judicial revision. Another procedural protocol (Practice Statement [1998] 2 ALL ER 667 at para. 8) has added specialist or subject- based reports to the hierarchy of citation (e.g. Butterworth’s Medical Law Reports (BMLR)).Where a case is not reported in a series apparent in the hierarchy of citation, then less substantial reports may be cited, such as legal journals, such as the Criminal Law Review, or newspaper law reports, such as The Times Law Reports.